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Who owns the 6: Keenan

If we’re talking about the nickname for Toronto, some people might say Drake owns it — he popularized, after all, it starting in the summer of 2014 — but others might say we all own it, since it caught on so widely. If we’re talking about the city, some might still say Drake owns it, in a manner of speaking, but most would probably agree we citizens own it together.

Kneeling from left to right, Jacob Lopata, Julian Facchinelli, Cy Cain and standing from left to right Hasan Ammar, coach Sharon Harris, Aaron Austion, Lucas Pratt, Declan Troy, Ethan Custodio, coach Ryan Balan, together they make up the Pee Wee Toronto Playground baseball team. The team tried to incorporate the number 6 in their name but ran into copyright problems. (Bernard Weil / Toronto Star)

But what if we’re talking about the number? Who owns that, and the right to use it? If that’s the question, most people might say, “Whaaaaaaa?” How can you own a number?

But a local children’s baseball team got a different answer when they tried to order uniforms using a logo featuring the numeral 6 in the middle of it — playing off of Drake’s nom de ville — only to be refused. “Rejected: Six or any variation of six (6) is trademark” read the message they were sent.

“We couldn’t believe it,” says Sharon Harris, an assistant coach with the Pee Wee Toronto Playground rep team whose logo was smacked down. “I do not understand how anyone can trademark a number.”

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The kids Harris coaches were just tired of being called toilet paper. For a long time, the Toronto Playgrounds clubs have simply had the initials “TP” as their logo, and kids being kids, certain nickname associations come up. They’re proud of their organization and its history, Harris says, but they wanted to try something new.

Harris, head coach Jason Troy and fellow assistant Ron Lapata and their team wanted something that emphasized they were one of the only local teams playing out of a downtown home field — something that emphasized Toronto. They drafted up a logo that featured the CN Tower prominently.

But Harris says they thought they should check with the CN Tower management about using its image. They were told they could not use it — as part of the skyline, it’s fair game, but as a standalone image, it’s trademarked by the CN Tower.

So they went back to the drawing board and came up with a logo that had the number 6 in the middle of it, with a baseball in the hole in the numeral. They sent it to their local uniform supplier, who came back with a rejection from their Buffalo, NY-based cap manufacturer, New Era. They tried a different uniform supplier, who it turns out also buys caps from New Era, and were rejected again.

If you want to use a professional sports logo for your rec league team, you often can — manufacturers like New Era have licensing agreements that allow rec league teams to use pro names and logos by paying a small fee. But in this case they got a flat rejection.

“We couldn’t believe it,” Harris says. “We put so much work into thinking about this. We thought our idea was a bit different and fun. But it feels like we’re being penalized for doing something creative, and something other than just using the name of an American sports team.”

They could have tried seeking out some other manufacturer, but they also wanted a name and logo that were legal and ethical. They weren’t hoping to break the law. So they came up with something simpler, “Toronto Baseball Club,” and moved on.

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But is this legit? Is it really possible that someone could trademark a numeral and forbid other people from using it?

New Era sent a statement through a PR representative claiming so. “The design was indeed rejected as we take the protection of intellectual property rights very seriously and do not knowingly infringe on third party trademarks.” They referred me to a particular Canadian trademark registration number and declined to comment or explain further.

The specific registered trademark they referred to as the basis for their decision is for the term “The 6” — as it applies to a large number of enumerated goods, including sound recordings, jewelry, watches and hats.

This trademark on one variant of Toronto’s nickname du jour is not registered to the man who is most famously associated with it. Drake’s company, October’s Very Own, is listed as the registrant for a bunch of Canadian trademarks and applications, including one on “6ix,” and another on the numeral six with a praying hands logo design attached to it. But not “The 6,” which appears to be the mark in dispute here. Lawyers listed as representing October’s Very Own in the U.S. and Canada did not respond to an emailed request for comment on this story.

Neither did the registered owner of “The 6.” That’s entertainment lawyer Eb Reinbergs, who filed his application for the trademark on July 16, 2014 — two days after Drake first made the nickname famous by announcing a forthcoming album he planned to call “Views from the 6.” The mark was officially registered in his name in March, 2016.

Reinbergs’ website has a photo of him on television discussing Drake with CBC news anchor Dwight Drummond, but it isn’t clear from a look through his website or a quick Google search whether he has any affiliation with Drake. It’s also unclear from his website what clothing and music goods he produces that he uses his registered trademark to protect.

Reinbergs did not return messages asking for comment on this story. So it isn’t clear whether he’d seek to enforce his trademark against a children’s baseball team or anyone else using it.

Which still leaves the question: could he?

“That’s totally off base,” says Giuseppina D’Agostino when asked about New Era’s response to Harris and her team. D’Agostino is the founder and director of Osgoode Hall’s intellectual property law and technology program, Osgoode IP. “It seems a bit heavy handed by the legal department, probably trying to err on the side of caution, which is unfortunate,” she says.

Trademarks don’t just apply to generic words, D’Agostino says, they apply to specific designs, or product lines, or names as they are used for specific things, “in a specific context”. She says protections offered by trademarks are meant to be reasonable, and to trace and protect the authenticity of the usage of a name or logo or design.

“The test is confusion. Would ordinary consumers in the marketplace confuse the children’s baseball team with this lawyer’s goods? I don’t think so.” She says it appears likely New Era is being overzealous because they don’t want any prospect of a problem at all, they just want to avoid having the issue come up.

But, she says, even if the fear is not legitimate, Reinbergs should still be able to dispel it entirely, if he is so inclined. “If the actual owner doesn’t care, he can make this all go away,” she says. “He basically could put something in writing allowing it.” Were he to grant specific permission to the children’s team, saying he sees no infringement on his trademark in a use like this, that should clear up any concerns.

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